Introduction: Convergence of Disciplines

• Author: Robert J. Currie
• Profession: Schulich School of Law, Dalhousie University
• Pages: 1-47

1

CHAPTER 1

INTRODUCTION:

CONVERGENCE

OF DISCIPLINES

A. INTRODUCTION

To the p erson who s ays he k nows noth ing about intern ational and tra ns-

national crime, the reply would have to be, “But of course you do; it is all

around us; it is constantly in the media.” Indeed, it is not hyperbole to

sta te tha t over t he las t deca de inte rnat ional a nd tra nsna tiona l cri me have

come to permeate a large part of the modern political, legal, and social

agendas of both states and the world at large. As a case in point, what is

arguably the most prominent and far-reaching socio-political event in

modern history — the attacks on the World Trade Center and the Penta-

gon on 11 September 2001 — was a manifestation of international ter-

rorism, a phenomenon already well known to the world community. It

was “t ransnati onal” in the t ruest sen se of the word: it involved, as i s well

known, an attack in the US by a group of mostly Saudi nationals who

were members of a shadowy organization that was being at least loosely

run from Af ghani stan. The vict ims of the att acks we re nat ionals of sever-

al count ries. Pers ons allegedl y involved in pl anning the attac k have been

apprehended and subjected to trial in the US, the UK, and France. Others

have been transported to secret detention sites in still other states (some-

times without the knowledge of these states), interrogated, and subjected

to torture — which is itself an international crime.1

1 For example, Khalid Sheikh Moham med, believed to be one of the chief lieuten-

ants of Osama bin Laden and t he planner of the 9/11 attacks, was apprehended

INTERN ATIONAL AND TR ANSNATIONAL CRIM INAL LAW2

This horrendous cr ime was a forceful reminder that crime is not

now (if it ever was) a matter only of concern to domestic victim s, po-

lice, and prosecutors, and that crime suppression cannot stop at the

borders of any one state. The reactions to and effects of 9/11 have been

global in scope; they have included armed attacks on two sovereign

states, increased and sometimes dubious enforcement of “security”

goals by governments worldwide, the undermining of international hu-

man rights standards, and attempts to squelch legitimate public debate

about the eff‌icacy of these efforts.2 Other horrendous crimes have led

to signif‌icant inter national reaction. The international media has been

full of reports about the atrocities which occurred during and after

the breakup of the former Yugoslavia, the genocide that took place in

Rwanda in 1994, and more recently t he horrif‌ic carnage wrought by

government and militia forces in the Darfur region of Sudan.

And yet it is not just international and transnational crime, but

the bodies of law attaching to these phenomena, which are alive in the

media and in the public imagination. In particular, the enforcement of

what has traditionally been called “international criminal law” (ICL)

has been very visible. One need only consider the prosecutions under-

taken against former heads of state alone, which would have been un-

heard of twenty years ago: the arrest of former Chilean dictator Augusto

Pinochet in the UK on the basis that he was wanted for crimes by a

Spanish magistrate;3 the trial of Serbian strongman Slobodan Milosević

in Pakist an in March, 2003. He was tur ned over to US authorities, who tran s-

ported him to b e questioned at an “undisclos ed location,” and he was later

reported to have d ivulged information th at led to the capture of other high-

ranking A l-Qaeda f‌igures (see And rew Buncombe, “Attacks in Riyadh: Saud i

Bombs Expos e Myth of American Victor y in Terror War” The Ind ependent (14

May 2003) at 5). The US government recently dis closed that Mohammed had

been subject to the “ waterboarding” torture te chnique 183 times while in

custody: Scott Sh ane, “Waterboarding Used 266 Ti mes on 2 Suspects” The New

York Times (20 April 2009), online: www.msnbc.m sn.com/id/30302830/. At the

time of writ ing, Mohammed was on tri al at Guantanamo Bay.

2 “[T]he events of 11 Septemb er 2001 became a catalyst for the s ystematic

disregard of e stablished internat ional rules on human rig hts, the treatment of

combatant pri soners and the use of milit ary force around the world . . . . ” (Phil-

ippe Sands, Lawless World: Ma king and Breaking Global Rules, rev. ed. (London:

Penguin, 200 6) at 21). See also Internat ional Commission of Juri sts, Assessing

Damage, Urging Action: Re port of the Eminent Jurists Panel on Terrorism , Counter-

terrorism an d Human Rights (Geneva: Internationa l Commission of Jurists,

2009), online: www.icj.org/ IMG/EJP-report.pdf.

3 R. v. Bow Street Magistrate, ex par te Pinochet (No. 3), [2000] 1 A.C. 147 (H.L.).

See also Mich ael Byers, “The Law and Politics of the Pi nochet Case” (2000) 10

Duke J. Comp. & Int’l L. 415.

Introduction: Conver gence of Disciplines 3

before the International Criminal Tribunal for the former Yugoslavia

(ICTY), the f‌irst sitting head of government to be indicted and tried

by an international criminal tr ibunal;4 the trial, conviction, and execu-

tion of deposed Iraqi dictator Saddam Hussein before an Iraqi court for

international crimes committed while he was in off‌ice;5 the conviction

of for mer Rwan dan Pr ime Min ister Je an Kam banda b y the Int ernat ional

Criminal Tribunal for Rwanda;6 the trial of former Liberian President

Cha rles Taylor b efore the Sp ecial C ourt for Sie rra Leon e;7 the convi ction

of former Peruvian President Alberto Fujimori for torture, kidnappings,

and enforced disappearances;8 and the recent indictment of Sudanese

President Omar Al-Bashir by the International Criminal Court (ICC).9

Even the making of international law, not always a matter of signif‌i-

cant public interest, has had a high prof‌ile when international crime is

involved, as evidenced by the prominent coverage of the 1998 United

Nations conference in Rome that led to the conclusion of the Rome Stat-

ute of the International Criminal Court.10 The R ome Statute is, in many

senses, the pinnacle of the modern history of efforts to ensure account-

ability for international crime. That history, and the concurrent history

of inter-state cooperation in suppressing transnational crime, will be

brief‌ly surveyed below.

B. HISTORY

While ICL in its modern form truly emerged in the twentieth century,

some of the ideas and the mes which under pin it can be t raced back sev-

eral thousand years and brought forward through the ancient empires

4 Which was brought to a n untimely end by the defendant’s deat h due to illness

on 11 March 2006. See Mic hael Scharf & Willi am Schabas, Slobodan Milose vic

on Trial: A Companion (New York: Continuum, 2002).

5 Mariam K arouny, “Saddam Executed at Dawn” The Globe and Mail (30 Dece m-

ber 2006) A1. See Michae l Scharf, Saddam on Trial: Unde rstanding and Debating

the Iraqi High Tribunal (Durham, NC: Carol ina Academic Press, 20 06); Michael

Newton & Michael Sc harf, Enemy of the State: The Trial and Exe cution of Saddam

Hussein (New York: St. Mart in’s Press, 2008).

6 Kambanda (ICTR-97-23-A), Appeals C hamber Judgment, 19 October 2000.

7 Tayl or (SCSL-03- 01-T). Taylor’s tri al is currently under way be fore a special

panel of the Speci al Court for Sierra Leone, sitti ng in The Hague.

8 “Fujimori Gets Le ngthy Jail Term” BBC News (7 April 2009), online: http://

news.bbc.co.uk/2/hi /americas/7986951.stm.

9 “Warrant Iss ued for Sudan’s Leader” BBC News (4 March 2009), online: http://

news.bbc.co.uk/2/hi /africa/7923102.stm.

10 UN Doc. A /CONF.183/9; Can. T.S. 2002 No. 13 [Rome Statute].